HIRALAL GULABCHAND SHAH Vs. KESHAVLAL PAREKH

JUDGEMENT

(1.) THIS application is filed by the complainant against the order of the learned Presidency Magistrate, 24th Court, Borivli, dismissing his complaint against the opponents under section 203 of the Criminal Procedure Code.

(2.) THE complainant has filed a complaint against the opponents charging them with offences under sections 384, 385, 387, 220, 467 and 166 read with section 114 of the Indian Penal Code. In this complaint it was alleged that Opponents Nos. 1 and 2 (who will hereafter be referred to as accused Nos. 1 and 2) were brothers doing kariana business at Carter Road, Borivli, in the name and style of Shashikant Suryakant Parekh and that the complainant himself did simitar business and had business dealings with the shop of accused Nos. 1 and 2 through their Mehta by name Nemichand. The complainant alleged that Nemichand used to bring the goods bought by him from the shop of accused Nos. 1 and 2 with the bills prepared by those two accused and take his signature on the counterfoils in token of having received the goods. He further alleged that in all 7 bills of different dates were sent to him by accused Nos. 1 and 2 and that they were all paid oft" through Nemichand. The complainant further alleged that on 20th April 1962 accused Nos. 1 and 2 sent a Bhayya to him at about 10 p. m. with a message that he was required urgently at their place and that in response io that message he went to the shop of accused Nos. 1 and 2. When he reached the shop, besides accused Nos. 1 and 2, accused No. 4 who was then the sub-inspector at Borivli police station and another man named Virji were also present in the shop. The complainant asked accused No. 4 as to why he was sent for. Accused No. 4 stated that Nemichand had misappropriated the moneys of accused Nos. 1 and 2, that a sum of Rs. 30,000/- was due from him (the complainant) to accused Nos. 1 and 2 and that he should pay that amount on pain of being put in the lock-up. The complainant told accused No. 4 that he had nothing to pay to accused Nos. 1 and 2 since he had paid for all tho goods received by him from them and that all the bills in respect of those goods were signed by Nemichand in token of his having received the amount thereof. Thereafter accused No. 4 took the com-plainant to the police station and from there he was taken to his own shop at about 2. 30 a. m. for verify ing the bills. According to the complainant, all tie bills except the last one which could not be traced at mat time were seized by accused No. 4 and taken to the police station along with the complainant. The complainant further alleged that at about 5. 30 a. m. on 21st April, 1962, accused No. 3 who was the senior grade sub-inspector at Borivli Police station came to the office and had a talk with accused No. 4 in English and that accused No. 3 thereafter threatened him to pay. Rs. 30,000/- to accused Nos. 1 and 2 or else be prepared to be put in jail. According to the complainant, accused Nos. 3 and 4 then left the Police station, saying that accused Nos. 1 and 2 should talk with the complainant. The complainant alleged in his complaint that accused Nos. 1 and 2 thereafter told him to pay at least half the amount i. e. Rs. 15,000 and further told him that if that amount was paid they would sea that he was allowed to go from the Police Station. Finding himself in a difficult situation, the complainant, it was alleged in the complaint, agreed to procure a sum of Rs. 5,000 in cash and execute bundles in respect of the balance of Rs. 10,000. The complainant then slated that accused No. 4 accompanied by accused Nos. 1 and 2 went tp the house of the complainant and there the complainant arranged to collect Rs. 5000 and on the collection being made, that amount was paid over to accused Nos. 1 and 2 at the police station in the presence of accused Nos. 3 and 4 at about 7. 30 a. m. Three hundies, two of Rs. 2500/- each and one of Rs. 5000 were thereafter executed and separately dated by the complainant. On these allegations the complainant alleged that all the four accused obtained the money and valuable securities like hundies from him. The complainant further stated in this complaint that he asked accused Nos. 1 and 2 pass a writing in respect of the amount paid and the hundies passed by him and such writing was given by them. The complainant further alleged that in spite of this payment and execution of the hundies accused Nos. 3 and 4 did not allow him to leave the police-station and go home and demanded Rs. 2,000/- by way of bribe. The complainant told them that he had no more money to pay since he had already paid a sum of Rs. 5,000 to accused Nos. 1 and 2. According to the complainant, the two police officers, accused Nos. 3 and 4, thereupon threatened him and went away. At about 5. 30 p. m. accused Nos. 1 and 2 came back to the police station along with accused Nos. 3 and 4 and the former told the complainant that they would pay Rs. 1500/ to accused Nos. 3 and 4 out of the sum of Rs. 5000/- received by them if the complainant agreed to execute hundies for that amount in their favour. The complainant stated that, there was no alternative left to him in the situation in which he found himself and therefore, he agreed to that proposal whereupon accused Nos. 1 and 2 paid Rs. 1500/- to accused Nos. 3 and 4 and two hundies, one for Rs. 500/- and the other for Rs. 1000/- were executed by him in the name of Bhimji Jivraj. According to the complainant, he asked for a receipt for this sum of Rs. 1500/- but accused Nos. 1 and 2 refused to pass any such receipt. It was only after all these things were done that he was released from ihe police custody and he went home. He, however, fell ill but soon after his recovery from that illness, on making enquiries he learnt that no complaint was at all filed by accused Nos. 1 and 2 with regard to any misappropriation of their money and that all the accused had joined hands with a view to extoring money and getting valuable securities from him. On these allegations, he filed a complaint against all the four accused charging them with offences as stated hereinabove in the Court of the presidency Magistrate at Borivli on 26th April 1962. Along with this complaint art application was also filed by the complainant praying that a search warrant be issued as against accused Nos. 1 and 2 for seizure of certain documents, papers and account books from their shop. The learned Magistrate did not pass any order either on the complaint or on the application on the day they were presented to him, but on the next day he issued notice to the accused to show cause as to why process should not be issued against them in respect of the charges made against them in the complaint. The hearing of this notice was taken up on the 27th September 1962, when the learned Magistrate thought fit to examine the complainant on oath in exercise of his power under section 202 of the Criminal Procedure Code, but curiously enough after examining him on oath on the subject-matter of his complaint, he allowed the advocate for accused Nos. 1 and 2 as well as the advocate for accused Nos. 3 and 4 to cross examine the complainant and the cross-examination covered as many as four typed pages. The learned Magistrate thereafter did not think" fit to examine any other witnesses. The further hearing of the notice was thereafter adjourned to 19th October 1962. On that day the learned Magistrate heard the arguments advanced by the respective advocates of the parties but since the arguments could not be over on that day, they were further heard on 24th October 1962. After considering the evidence and the documents produced in course of the enquiry, both by the complainant and the accused, the learned Magistrate thought that the complainant had failed to make out a prima facie case against the accused and that there was no truth in the complaint filed by him. The learned Magistrate accordingly dismissed the complaint under section 203 of the Criminal Procedure Code. It is against this order of the learned Magistrate that the complainant has filed the present revision appucaiion in this Court.

(3.) IN support of this application, it was strenuously urged by Mr. Dalai, the learned advocate for the complainant, that although the procedure follow ed by the Magistrate in Greater Bombay of issuing notices to persons charged with any offence before issuing process under provisions of the Criminal Pro cedure Code was not illegal as held by our High Court in In re Virbhan Bhagaji, 30 Bom LR 642 : (AIR 1928 Bom 290), the learned Magistrate could cot possibly allow the accused a right to cross- examine the complainant as was done in the pre sent case. According to him, the scope of enquiry by a magistrate to whom a complaint is presented with a view to ascertaining the truth or falsity of such complaint is limited to examining the com plainant and such of his witnesses as he thinks fit, hearing the explanation of the accused as regrads the charges made against him, allowing him to tender such documents as he pleases in support of fais explanation, considering the evidence of the complainant and his witnesses and the explanation of the accused and the documents produced by him, and then deciding whether or not he would issue process and further proceed with the hearing of the complaint. At one stage Mr. Dalai con tended that the practice prevailing in the Magistrate's Court in greater Bombay of issuing notices to accused persons was condemned by this Court. He was, however, not able to cite a single decision which condemned that practice. On the contrary what we find is that this court in the decision referred to above, did not hold that practice to be illegal so as to vitiate the proceedings before the Magistrate. In the light of this decision, therefore, it must be held that there is nothing wrong in the Presidency Magistrates in Greater Bombay issuing notices to accused persons to show cause why processes should not be issued against them in respect of the complaints presented to them, though this practice is not strictly authorised by the provisions of section 202 of the Criminal Procedure Code.